Vickers v. State

Decision Date29 June 1940
Citation142 S.W.2d 188
PartiesVICKERS v. STATE. RICH v. SAME.
CourtTennessee Supreme Court

Maddox, Maddox & Maddox, W. H. Lassiter, R. M. Murray, and G. C. Crider, all of Huntingdon, for plaintiffs in error.

Nat Tipton, Asst. Atty. Gen., for the State.

CHAMBLISS, Justice.

These two cases, involving the same question, are heard here together, though tried separately below, where both plaintiffs in error were convicted of unlawful possession of liquor. Vickers was given a fine of $300 and a jail sentence of five months and Rich a fine of $150 and sentence of ninety days.

Both men had many cases of whiskey on their premises, and were quite evidently engaged in the business of selling. They make but a single question. They say that the search which revealed their illegal possession, although made with search warrants in proper form, was unlawful because made by officers of the State Highway Patrol. The trial Judge overruled the objection made on this ground to the admission of the testimony of the officers making these raids.

The insistence is that search warrants may be issued to and served by County peace officers only, citing Code, §§ 11897, 11903. These sections read:

Section 11897. "A search warrant is an order in writing in the name of the state, signed by a magistrate, directed to the sheriff, any constable, or any peace officer of the county, commanding him to search for personal property, and bring it before the magistrate."

Section 11903. "The warrant may be executed by any one of the officers to whom it is directed, but by no other person, except in aid of such officer, at his request, he being present and acting in its execution."

In the first place, it will be observed that the Section last above quoted provides that, "The warrant may be executed by any one of the officers to whom it is directed", and the preceding Section, 11901, reads as follows:

"Warrant to issue, if cause shown. — If the magistrate is satisfied of the existence of the grounds of the application, or that there is probable ground to believe their existence, he shall issue a search warrant signed by him, directed to the sheriff, any constable, or any peace officer, commanding him forthwith to search the person or place named for the property specified, and to bring it before the magistrate. (Modified.)"

It will be seen that this section authorizes the magistrate to issue the warrant to "any peace officer", without the restriction, "of the county", contained in Section 11897. It is this section which directly defines and controls the authority of the magistrate in his issuance of the warrant. It must be conceded that "peace officer" is an exceedingly comprehensive term, embracing public officials of practically every class and position, Judges of all degrees, policemen, mayors, aldermen, etc., etc., whether county, municipal or State representatives. Code, § 11418, which denominates the sheriff as "the principal conservator of the peace in his county," is followed by Section 11419, which reads:

"The judicial and ministerial officers of justice in the state, and the mayor, aldermen, marshals, and police of cities and towns, are also conservators of the peace, and required to aid in the prevention and suppression of public offenses, and for this purpose may act with all the power of the sheriff."

It can hardly be questioned that a search warrant issued by a magistrate to "any peace officer" (Code, § 11901) is lawful when issued to any "conservator of the peace". The members of the State Highway Patrol are police officers, and the duty to keep the peace would seem to be imposed upon them, if not in terms, by clear implication. And, in this connection, it may be of some significance that the proof is that the State officer who acted in the instant cases had been assigned to work in Carroll County.

In the second place, the Assistant Attorney General relies on Paragraph 3, of Section 15, Chapter 49, Public Acts of 1939, as expressly conferring authority upon members of the Highway Patrol to enforce the law prohibiting the possession of liquor in dry territory. This statutory provision reads as follows:

"The State Highway Patrol shall be authorized and it shall be their duty to assist the County and Municipal police authorities to enforce the provisions of this Act, and any other Act relating to the manufacture, sale or distribution of alcoholic beverages, as herein defined, in any County or Municipality failing to adopt the rights granted under the various provisions of this Act."

It is conceded that Carroll County is dry territory and that the possession of liquor in these cases was unlawful, but counsel for plaintiffs in error contend that this statute should be construed to confer authority upon officers of the Highway Patrol to act only in conjunction with the Sheriff or other strictly County officers in such cases only as one or more of these officers, taking the initiative and procuring the warrant, may invite or command the State Patrol to "assist" them.

The case for plaintiffs in error rests on the contention that the language of this statute conferring on the State Highway Patrol authority to "assist the County and police authorities" should be thus narrowly construed. We think not.

As suggested on the brief for the State, since these local officers already had full power to call on members of the Highway Patrol, or, indeed, any private citizens, to "assist" them in this restricted sense (Code, § 699), such a construction would deprive the statute of all usefulness and hold the Legislature to have done a futile thing.

Nor do we think the context supports this narrow view. The Legislature was dealing with a widespread practice of law violation likely to be aggravated in the counties left legally "dry" by the conversion of adjacent counties into legally "wet" territory under this Act of 1939. To meet this situation authority was conferred and the duty imposed on the members of the Highway Patrol to assist the officers already primarily dedicated to this purpose in this particular branch of law enforcement. They are to assist in the abatement of a particular evil, — not in its abatement by a particular officer. By raids and arrests when this law violation is brought to their attention, this group of officers, constantly patroling the public roads, will contribute to the suppression of the evil and thus render assistance in this broad sense. In the use of the word "assist", it is the end which is...

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